Court of International Trade

The ban on fish and shellfish harvested in the Upper Gulf of California in Mexico near an endangered species of porpoise is "effective immediately," the Court of International Trade ruled Aug. 14. The administration had argued that the regulatory process to create a certificate of admissibility, which involves multiple entities within the federal government, could not be done immediately (see 1808080005). "The Court discerns no merit in the Government’s suggestion that the import ban is not effective immediately," CIT said. "The Court reiterates that it is effective immediately."

The National Oceanic and Atmospheric Administration and the National Marine Fisheries Service are planning to use a "certificate of admissibility" to comply with a court order to ban fish and fish products from Mexican fisheries that use gillnets near the endangered vaquita porpoises, the government said in an Aug. 3 filing. The Justice Department said there are "certain implementation challenges" due to the inclusion of two species of fish that are to be banned within the basket of provisions of a Harmonized Tariff Schedule subheading that also include other species. A Court of International Trade judge recently approved a preliminary injunction (see 1807260039) that said the government must "ban the importation of all fish and fish products from Mexican commercial fisheries that use gillnets within the vaquita’s range."

The following lawsuits were filed at the Court of International Trade during the week of July 30 - Aug. 5:

The U.S. Court of Appeals for the Federal Circuit on Aug. 6 affirmed a lower court ruling on the classification of battery-powered candles in heading 9405 as lamps and lighting fittings. CAFC largely agreed with the Court of International Trade's finding in a Gerson Company challenge to CBP's classification of the candles after liquidation in heading 9405 with a 3.9 percent duty rate during 2009 and 2010 (see 1708030011). Gerson appealed CIT's ruling over what the company said were errors in the court's analysis.

The National Marine Fisheries Service is developing a plan to ban fish and fish products from Mexican fisheries that use gillnets near the endangered vaquita porpoises as required by a recent Court of International Trade ruling (see 1807260039), said Zak Smith, a senior attorney at the National Resources Defense Council. "It is my understanding that the government is not yet imposing a ban on imports, but that the National Marine Fisheries Service is working on the process for blocking the products subject to the import ban, while allowing other imports to enter," Smith said by email. The NRDC is one of the animal conservation groups that brought the lawsuit. CIT approved a preliminary injunction on July 26 that requires the government to ban imports of certain fish products from Mexico while the case is pending. The NMFS didn't comment.

The following lawsuits were filed at the Court of International Trade during the week of July 23-29:

The Court of International Trade should still force the government to issue an interim final rule on drawback calculations even though CBP released its proposed drawback regulations under the Trade Facilitation and Trade Enforcement Act on July 27 (see 1807270024), drawback filers and importers said in a filing that same day. "This Court can and should compel the required agency action by directing defendants to publish the required calculation regulation, and any other portion of the regulations required to make it effective, as an interim final rule, with immediate effect. (Alternatively, the Court can simply declare all of the [notice of proposed rulemaking] to be in force as an IFR,)" the companies said in the filing.

Pool floats with plastic air bladders and a seat made of woven elastomer mesh are classifiable as articles of plastics, not as made up textile articles, the Court of International Trade said July 23 in a decision overturning a recent CBP ruling. Though neither plastics nor textile materials predominate, the air bladders give the pool floats their essential character because they perform the most important function, CIT said, also ruling several models of pool floats for infants aren’t classifiable in a duty-free Chapter 95 provision for sports or exercise equipment.

Three more companies are now set to be exempt from antidumping duties on multilayered wood flooring from China, after the Commerce Department on July 25 issued a notice implementing a recent Court of International Trade decision. Dunhua City Jisen Wood Industry Co., Ltd., Fine Furniture (Shanghai) Limited, and Armstrong Wood Products (Kunshan) Co., Ltd. will all be exempt from AD duties should the decision become final, Commerce said. All three of the companies had sought to be individually examined in the original AD duty investigation, but Commerce improperly denied their requests, CIT said. The partial revocation of the orders is set to take effect for entries on or after July 13, 2018. Commerce will set these companies’ cash deposit rates to zero until the period for appealing the CIT decision runs out, it said.

The National Oceanic and Atmospheric Administration is going over its options in response to a Court of International Trade preliminary injunction that requires the government to ban certain fish from Mexico (see 1807260039), a National Marine Fisheries Service spokeswoman said. NOAA, which houses the NMFS, "is reviewing the ruling from the Court of International Trade and determining next steps," she said. The court approved the preliminary injunction in a lawsuit over protecting vaquita porpoises. The CIT ruling said the government must "ban the importation of all fish and fish products from Mexican commercial fisheries that use gillnets within the vaquita’s range."